dissenting:
I respectfully dissent.
I.
As stated in the majority opinion, the fundamental issue in this case is the search and seizure question. This must be considered as a warrantless search. At the time it was conducted, Twyford had been arrested and the two defendants here had not. Twyford had told the authorities of the contents of the car and had described the defendants. The Attorney General concedes that the search could not be justified as being incidental to Twyford’s arrest. Since the two defendants had not yet been arrested, the search ipso facto could not be incident to their arrest.
I have been unable to find anything in the record — and no contention has been made — that the search was necessary in order to aid in the apprehension of the defendants. Assuming arguendo that this warrantless search might be justified by reason of exigent circumstances, I am unable to perceive any exigent circumstances. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).
The Attorney General states in his brief:
“Since the police in the case at bar had valid possession of an automobile used by the men who had committed the burglary and murder, and since the police searched the car for evidence related to the aforesaid crimes, their search was reasonable, especially in light of the fact that two of the suspects were still at large and could possibly destroy the evidence contained in the car.”
With the sheriff in possession of the car and having had it stored in his own garage, I cannot accept the argument that *324the search was justified in order to prevent the suspects from destroying evidence contained in the car. In contrast to a situation where there is no time to obtain a search warrant, there is some significance in the fact that here the sheriff took the time to prepare an affidavit (albeit a defective one) and obtain a search warrant from a district judge.
It would thus seem that if the search is to be justified it must be upon the reason which the majority terms “compelling,” i. e., the defendants’ lack of standing to object to the search by reason of their abandonment of the Mustang.
After this matter was at issue here we asked the parties to submit additional briefs on the search and seizure question as to “Whether the defendants, who allegedly fled on foot, have standing to raise the question.” In the defendants’ additional brief it is pointed out that the question of standing is being raised for the first time by this court; the matter was not presented to or argued before the trial court; and that, until we asked for the supplemental briefs, nothing had been said here.
If this case is to be controlled by the matter of standing, it is imperative that the defendánts have an opportunity to present evidence on the issue. They did not testify at trial, and in an in camera proceeding, they conceivably could negate the fact of abandonment of the car or negate any connection with the car. Also, they might claim a proprietary interest in the articles seized and thereby invalidate the search since it was conducted out of their presence. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); and United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59 (1951). They simply have not had their day in court on this all-important question.
II..
If the admission in evidence of the pillow and pillowcase had been the only error committed in the trial, one might brush over it as de minimis. This should not be done here, however, for two reasons: (1) the statement of the trial judge that he would give an instruction as to these articles; and (2) the several errors committed in the trial of this case.
*325When these articles were offered in evidence, counsel for Barrientos objected. The district attorney stated that the exhibits were offered “for the purpose of showing that this was the particular car that was there.” The court stated, “I’m going to instruct the jury when I get around to the admission of the stuff, it is solely for the purpose of establishing that fact and that fact alone, not for the purpose of proving any crime.” Later, the exhibits were admitted in evidence without any cautionary oral instruction on the part of the court, and the subject was not mentioned in the court’s final instructions.
I regard the portion of Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959), quoted in the majority opinion as controlling. The Attorney General argues that this did not constitute reversible error because the defendant did not ask for the oral instruction at the time the exhibits were entered in evidence and did not tender a written instruction at the conclusion of the evidence. When a court assures counsel that it is going to do something which the law requires, the court has undertaken that obligation and the absence of further objections or requests on the part of counsel does not modify the court’s duty. Under the circumstances of this case, ‘this was prejudicial, reversible error.
While a constitutional question is not presented as in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), I think the Chapman analysis supports the proposition that a court does not as readily overlook an instance of de minimis error if there is other prejudicial error in the record. In other words, in light of these other errors, I do not think it can be said that the admission of the stolen pillow and pillowcase without a limiting instruction was harmless beyond a reasonable doubt.
III.
Error was committed in not granting Barrientos a severance. In this connection, it must be born in mind that, if evidence obtained in the search were not admissible, the only evidence connecting Barrientos with the crime are the facts that he was with Kurtz and Twyford in Omaha three days *326prior to the homicide and that he and Kurtz were together when they were arrested. With this setting and under my view of the search, it can be seen that admission of evidence linking Kurtz, and not Barrientos, with the crime could easily be prejudicial error so far as Barrientos is concerned.
Long prior to trial Barrientos moved for severance. At that time the district attorney objected and stated that there would be no substantial evidence that could be used only against Kurtz. In contrast, as set forth in the majority opinion, there was admitted in evidence: (1) the driving agreement with only the names of Kurtz and Twyford appearing on it; (2) the piece of cloth connected with Kurtz’ coat found near the scene of the crime; (3) the trousers found in the Mustang which fit Kurtz perfectly; (4) Kurtz’ statement, made out of the presence of Barrientos, “I want to take the sheriff to South Fork and show him the .22 pistol.” The admission of this evidence, after the court had denied severance upon the assurance of the prosecution that no such evidence would be presented, constituted reversible error. Crim. P. 14; and United States v. Kelly, 349 F. 2d 720 (1965).
IV.
The court ordered that Twyford should be tried separately. My reading of the record discloses that the description of Barrientos which Chief Black placed over the radio was rather accurate. The accuracy or inaccuracy of the descriptions, however, is of marginal importance. The real prejudicial error here is in the testimony of the chief to the effect that it was Twyford who gave him this information. Objection was made and there was a motion for mistrial. The court overruled these objections and denied defendants’ motion for mistrial. In so doing, the court relied on Gallegos v. People, 157 Colo. 484, 403 P.2d 864 (1965), which sanctions the use of such an extrajudicial identification when the description comes from a bystander or victim, usually themselves subject to cross-examination.
A somewhat different situation exists when the jury is advised that the description comes from a co-defendant *327whose trial has been severed, and, particularly, when that person is not available for cross-examination. To allow the police chief to relate only the description he broadcast in my view is permissible, although it involves the use of hearsay. To inform the jury that its source was a third defendant, however, circumvents the severance that had been granted, and gives the hearsay extra force in a jury’s mind as well. Mr. Justice Stewart stated in his concurrence to Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968):
“A basic premise of the Confrontation Clause, it seems to me, is that certain kinds of hearsay (see, e.g., Pointer v. Texas, 380 U.S. 400; Douglas v. Alabama, 380 U.S. 415) are at once so damaging, so suspect and yet so difficult to discount, that jurors cannot be trusted to give such evidence the minimal weight it logically deserves, whatever instructions the trial judge might give.”
Here, there was no instruction to disregard the source of the descriptions, and in fact the source was repeated upon request of the prosecutor to have the question and answer reread. I would hold this to be reversible error, when considered in connection with the other errors committed.
MR. JUSTICE ERICKSON joins in this dissent.